Citation Nr: 1400244
Decision Date: 01/06/14 Archive Date: 01/23/14
DOCKET NO. 11-21 266 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUE
Entitlement to an effective date prior to July 25, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and Dr. I.S.
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The Veteran served on active duty from September 1976 to September 1979 and was honorably discharged. The Veteran served again from July 1981 to December 1982 "under other than honorable conditions." In an April 1988 Administrative Decision, the RO determined that the Veteran's second period of service was a bar to VA compensation benefits.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Boston, Massachusetts.
The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2012. A copy of the transcript of that hearing is of record.
FINDINGS OF FACT
1. The Veteran's original claim for service connection for a nervous disorder was filed in October 1979.
2. In an April 1980 rating action, the RO denied service connection for a nervous condition, characterized as an inadequate personality. The Veteran was notified of this decision and did not appeal.
3. On November 27, 1995, the Veteran submitted a claim to reopen service connection for a psychiatric disorder.
4. In September 2008, the Veteran was diagnosed with PTSD secondary to military sexual trauma (MST).
CONCLUSION OF LAW
An effective date of November 27, 1995, but no earlier, is warranted for the award of service connection for PTSD. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).
Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in October 2007. This letter advised the Veteran of all required elements for service connection. The letter further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess, 19 Vet. App. at 473; aff'd sub. nom. Hartman v. Nicholson, 483 F3d 1311 (2007).
If a claimant wishes to obtain an effective date earlier than that assigned in an RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296. 299 (2006). In November 2008, the Veteran filed a timely notice of disagreement (NOD) to the September 2008 rating decision that granted service connection for PTSD, and that decision has not become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2013). It is therefore proper for the Board to adjudicate his claim for an earlier effective date. Id. Although the Veteran has not been specifically notified of the requirements necessary to establish an earlier effective date for the grant of service connection for PTSD, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation or earlier effective date following initial grants of service connection for a disability in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). As stated above, the appropriate notice has been given in this case.
VA has also complied with its duty to assist the Veteran in gathering evidence to substantiate his claim. All service treatment records and VA Medical Center (VAMC) treatment records are associated with the claims folder.
The Veteran testified at a hearing before the undersigned in April 2012. The Court held that at a hearing on appeal, a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The hearing was held in accordance with Bryant. In the present case, the issue on appeal was clearly set forth. It is clear that all outstanding evidence has already been obtained.
Throughout this appeal, the Veteran has argued that entitlement to an effective date prior to July 25, 2007, for the grant of service connection for PTSD is warranted based on the evidence already of record. He has not identified the existence of any additional evidence or argued that there are any developmental deficiencies in the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).
II. Analysis
Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(r) (2013).
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (a) (2013). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013).
VA regulations provide that a veteran may receive benefits by filing an informal claim. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs from a claimant may be considered an informal claim. 38 C.F.R. § 3.155 (2013). Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id.
An informal claim need not expressly identify the benefit sought, or the provision which corresponds to the benefits sought, but rather need only evidence a "belief" that entitlement to benefits exists. See 38 C.F.R. §§ 3.1(p), 3.155(a); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (to require that veterans enumerate which sections they found applicable to their request[s] for benefits would change the [nonadversarial] atmosphere in which [VA] claims are adjudicated).
An examination or hospitalization report may be accepted as an informal claim. 38 C.F.R. § 3.157(b). Such a document, however, may only be accepted as an informal claim if a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospitalization. 38 C.F.R. § 3.157(b)(1). The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2013). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2) (2013).
In October 1979, the Veteran filed a claim of entitlement to service connection for a nervous condition.
In November 1979, the Veteran underwent a VA examination. At that time, he stated that he was nervous, had insomnia, and experienced nightmares. The Veteran indicated that during service, he attended approximately 6 to 7 sessions of group therapy because he was feeling "nervous and was having problems." He denied problems with authority and he did not have any Article 15 for a conduct problem. Following the mental status evaluation, he was diagnosed with inadequate personality.
In an April 1980 rating action, the RO denied the Veteran's claim for service connection for a nervous condition, characterized as an inadequate personality. The RO stated that according to the Veteran's service treatment records, he was seen in October 1977 for complaints of sleep dysfunction which was manifested by frustration, anxiety, and occasional angry outbursts. Upon mental status evaluation, the Veteran was found to be within normal limits and he was recommended to continue seeing a Social Worker. In May 1979, he was seen with complaints of tension headaches and nervousness. In June 1979, he reported that he had insomnia and was nervous. The Veteran's separation examination showed that the Veteran was being followed at the Mental Health Clinic for nervousness, but no diagnosis was given. The RO noted that because the Veteran was diagnosed with an inadequate personality in his November 1979 VA examination, and given that a personality disorder was not a disability warranting service connection under VA applicable law, his service connection claim was denied. 38 C.F.R. § 3.303(c). That same month on April 10, the RO provided the Veteran with notice of the decision. The notice indicates that a fill-in-the-blanks form letter, Form FL 21-81, was used to inform the Veteran of the denial of his claim for monetary benefits, and to inform him of his appellate rights. See VA Form 21-523, dated April 10, 1980; 38 C.F.R. § 19.114 (1983) (with an effective date retroactive to January 1, 1980). The Veteran did not appeal. Therefore, the April 1980 rating decision became final. 38 U.S.C.A. § 7105.
In November 1995, the Veteran filed a claim for service for depression. The RO considered this a claim to reopen his previously denied claim for service connection for a nervous condition.
VAMC inpatient treatment records show that the Veteran was hospitalized for 12 days in November 1995. Upon admission, it was noted that the Veteran had a longstanding history of abuse of alcohol and cocaine, and had been diagnosed in the past to have a chronic mental illness, characterized by psychotic symptoms and affective symptoms. The Veteran described an uneventful childhood and was in the military for three years. The Veteran's discharge diagnosis was the following: (Axis I) polysubstance abuse; rule out schizoaffective disorder, (Axis IV) moderate psychosocial stressors which included homelessness and social isolation, and (Axis V) Global Assessment of Functioning (GAF) score of 30. Additional VAMC outpatient treatment records show that in February 1996, the Veteran was diagnosed with schizoaffective disorder with depression.
In April 3 and April 9, 1996 rating actions, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for depression. Evidence considered by the RO at that time included VA treatment records dated from 1979 to 1996. On April 4 and April 12, 1996, the RO sent letters, by regular mail, to the Veteran's address that was listed on his November 1995 claim, notifying him of the April 1996 rating action. The letters were returned by the United States Postal Service marked "refused." In the April 2012 Travel Board hearing, the Veteran maintained that in April 1996, he was homeless and never received the notification letters from the RO. He reported that he did not personally refuse any letters from the RO.
The Board notes that in a VA Form 21-4138 received in January 1996 (subsequent to the November 1995 claim and prior to the April 1996 rating actions), the Veteran had reported a mailing address in South Boston. However, the RO did not mail notice of the April 1996 rating decisions to this more recent address. Thus, the April 1996 rating decisions did not become final and the Veteran's November 1995 claim remained open and pending.
On July 25, 2007, the Veteran, through his representative, submitted a claim for service connection for bipolar disorder. In October 2007, he stated that he was the victim of a sexual assault during service.
In a letter from Ms. P.F., LICSW, a Social Worker at the Vet Center, dated in January 2008, Ms. F. stated that the Veteran had been treated at the Vet Center since March 1996. According to Ms. F., he had been diagnosed with MST and his symptoms were sleep disorder, hyperarousal, rage, intrusive thoughts, nightmares, and numbing. Ms. F. indicated that according to the Veteran, he experienced MST during his first period of active service.
In September 2008, the Veteran underwent a VA examination. He stated that as a child, he was sexually abused by his brother and sister. The Veteran indicated that during his first period of active service, he was again sexually abused by a sergeant. The abuse lasted for a year and a half. According to the Veteran, he never reported the abuse. He subsequently developed an alcohol and drug problem to medicate his mental pain due to the abuse. Following the mental status evaluation, the pertinent diagnosis was PTSD secondary to childhood and MST.
In a September 2008 rating action, the RO granted service connection for PTSD related to MST. The RO assigned a 100 percent disability rating, effective from July 25, 2007, the date the Veteran filed an application to reopen his claim for service connection for a psychiatric disorder, claimed as bipolar disorder.
In the September 2010 letter from Ms. F., she stated that the Veteran had experienced sleep problems, anxiety, and anger issues since filing his initial claim in October 1979. According to Ms. F., because he was eventually diagnosed with MST, and had experienced symptoms related to MST since October 1979, an earlier effective date in October 1979 was warranted.
In the August 2010 letter from Dr. S., he reported that the Veteran had been his patient for 15 years. According to Dr. S., the Veteran was diagnosed with paranoid schizophrenia and sexual trauma while in service. Dr. S. noted that he was able to review the Veteran's record for disability since 1979, and it was his opinion that the Veteran should be considered disabled since 1979.
In this case, although the RO considered July 25, 2007, as the date of receipt of the Veteran's reopened claim, as previously stated, because the Veteran had not been notified of the April 1996 rating actions, such ratings had not become final and the claim for service connection for a psychiatric condition had remained open since November 27, 1995.
Under governing law, the effective date of an evaluation and an award of compensation based on an original or reopened claim will be the date the claim was received or the date entitlement arose, whichever is later. As noted above, the April 1980 rating decision is final. The Veteran submitted a reopened claim on November 27, 1995. Evidence of record indicates that his PTSD diagnosed at the time of his VA examination on September 15, 2008, is the same psychiatric condition he suffered from when he submitted his claim in November 1995. Thus, under the provisions of 38 C.F.R. § 3.400, an effective date of November 27, 1995 is warranted for the award of service connection for PTSD. No claim for service connection for a psychiatric disorder was received at the RO between April 10, 1980, the date of notification of the final April 1980 rating decision, and November 27, 1995. Therefore, an effective date prior to November 27, 1995 is not in order. Accordingly, the Board finds that an effective date of November 27, 1995, but no earlier, is warranted for the grant of service connection for PTSD.
ORDER
Entitlement to an effective date of November 27, 1995, for the award of service connection for PTSD is granted.
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs